Dec 31, 2007

One of the best things about the end of the year is the chance to catch up on things I've missed out on during the year. I love the year-end best music lists, all of which are helpfully compiled on largehearted boy. Movie lists are great as well, though many of the Onion's favorite movies have yet to appear in most theaters. Dahlia Lithwick, the always-excellent legal reporter for Slate also runs down the "Bush administrations Dumbest Legal Arguments of the Year".

It's also been an eventful year in the cultural policy world, and in that spirit I've compiled the Top Ten Cultural Property events of the past year.

10. The Major theft in Brazil of Picasso's Portrait of Suzanne Bloch and a work by Brazilian artist Candido Portinari from the greatest South American Art Museum, the Sao Paulo Museum of Art. Much of the subsequent US media coverage of the theft has misleadingly depicted the Sao Paulo Museum of Art as a poor and bumbling institution that couldn't afford insurance. That's highly misleading, because even the wealthiest institutions have difficulty insuring their works. It's expensive to insure a work worth $100 million, and its often more cost-effective to spend that money on security. Of course the security was not up to the task in this case, but one wonders if a major theft of this nature from an American or European museum would be so quick to blame the museum?

9. The still-to-be revealed extent of the forgeries created by Shaun Greenhalgh, who lived in Council Housing in Bolton with his aging parents. His forgeries fooled the British Museum, the Art Institute of Chicago, and some of the world's leading experts on Gauguin. The most surprising aspect may be the breadth of the forged objects which ranged from an ancient Greek kouros to Egyptian to ancient cuneiform to a sculpture by Gauguin. How many more Greenhalgh's are on display now? We don't know for sure. It calls to mind Orson Welles' final masterpiece F for Fake: "It's pretty but is it art? How is it valued? The value depends on opinion, opinion depends on the expert, a faker ... makes fool of the experts - so who's the expert? Who's the faker?"

8. The recovery in August of three Picasso works stolen from the artist's granddaughter in February.

7. Another major story is the state of antiquities--discovered, displayed, stolen-- in Iraq.

6. The theft in August in Nice France, in which thieves stole 4 works by Monet, Sisley, and Bruegel. It's probably not possible to sell these works on the open market, but at least two of these paintings had been stolen in 1999. A theft to order seems the likely explanation.

4. In October da Vinci's Madonna of the Yarnwinder was recovered from a Solicitor's office in Glasgow, four years after its theft from Drumlanrig Castle. It was a major recovery because it was a da Vinci, but also because it was recovered in a solicitor's office. I'm looking forward to more details as the criminal trial unfolds in 2008.

2. A major milestone this year was the legal claims brought by Iran in England to seek to block the sale of antiquities. The first was Iran v. Berend [2007] EWHC 132 (QB) (an unsuccessful attempt to block the sale of a limestone relief from Persepolis). The other major dispute involved chlorite objects from the Jiroft region of Iran. The High Court ruling Iran v. Barakat Galleries Ltd. [2007] EWHC 705 held Iran was not able to establish an ownership interest, however this was overturned by the Court of Appeal in Iran v. Barakat Galleries [2007] EWCA Civ 1374. These decisions received surprisingly little media coverage, but will have long-lasting consequences for years to come as they have extended the standing of the 1970 UNESCO Convention, and provided important precedent for other nations which may seek to prevent the sale of antiquities in London's bustling antiquities markets.

1. The story I found myself writing the most about this year was the interminable dispute between Italy and the Getty, which finally culminated in an agreement this summer for the return of dozens of important works to Italy. The dispute has a number of related stories, including the ongoing dispute over the Bronze Statue of a Victorious Youth, and the Marion True/Robert Hecht criminal trial in Italy. Will it fundamentally change the antiquities trade? Does it signal the end of the universal museum? Will cultural policy matter in nations other than Italy? Perhaps 2008 has the answer to those questions.

Dec 21, 2007

The judgment in Republic of Iran v. Barakat Galleries [2007] EWCA Civ 1374 has been released today. At the High Court, Gray J decided in favor of the gallery because, first and foremost, the ownership declarations Iran relied on were in his eyes insufficient. The Court of Appeal reached the opposite result by holding that a claim for conversion is tenable so long as the various rights granted to Iran amount to an ownership interest under English law. Pictured here is a chlorite vase on the Barakat Gallery website, of the "intercultural style" similar to the objects now recovered by Iran.

i) Whether under the provisions of Iranian law pleaded in the Amended Particulars of Claim, the claimant can show that it has obtained title to the Objects as a matter of Iranian law and if so by what means, and

ii) If the claimant can show that it has obtained such title under Iranian law, whether this court should recognise and/or enforce that title.

The Court of Appeal answered both in favor of Iran.

In a startling rebuke to Gray J, the Court of Appeal noted that the lower court had concluded the relevant Iranian law was "both penal and public in character" and as a result it "could not be enforced in this country". As the Court of Appeal noted

Importantly, the Court of Appeal noted that "it is important to bear in mind that it is not the label which foreign law gives to the legal relationship, but its substance, which is relevant. If the rights given by Iranian law are equivalent to ownership in English law, then English law would treat that as ownership for the purposes of the conflict of laws." At issue was whether Iran's rights were sufficient to give it a claim for conversion under English law. The distinction from the lower court turns not on the legal significance of a proclamation such as "Iran declares itself the owner of all undiscovered antiquities"; but rather in the individual rights which Iran has given itself in these objects. If the sum of these rights amounts to ownership under English law, then Iran has a viable legal claim. As the Court of appeal noted in para. 80:

A steady string of arts venues have suffered closure in the UK in recent weeks. The Komedia in Brighton has had to shut its doors; the Windsor Arts Centre closed its doors last friday; and earlier this month the Lemon Tree in Aberdeen suddenly shut its doors as well. I should note in the interest of full disclosure that my wife had been in charge of marketing at the Lemon Tree for nearly a year, and its sudden closure came as quite a shock. It was hardly the season's greetings we were expecting from the Aberdeen City Council. The Lemon Tree closing was particularly disappointing for us, as it was a great venue which did a lot of community and charity work; and in many cases funding was secured which actually made these events profitable.

Sadly the trend seems likely to continue. And what is the root cause? Arts funding is always a battle, especially for real new and creative enterprises. In many cases much of the money the arts council and other organizations had previously given these organizations has been diverted to the Olympic fund. Not only that but corporate and other sponsorships are diverted to the Olympics as well. It's not only arts funding either.

The Portable Antiquities Scheme, a pioneering community archeology project will likely have its funding cut this year. Will Anderson rightly points out that "to halt the PAS now that it is operating so successfully would be folly. All so they can build another few domes for the Olympics. It is the department of 'Culture' Media and SPORT and its proxy the Museums, Libraries and Archives Council, that deserve to be scrapped".

Colin Renfrew had an excellent summary of the scheme's benefits in an opinion piece in the Guardian earlier this week. He points out that the scheme is "starting to transform our understanding of many aspects of the past". Seventeen PhDs have used PAS data. I know it featured prominently in my thesis as an excellent and pragmatic way to effectively regulate sites in source nations. In terms of concrete discoveries, a Viking age cemetery was discovered in cumbria, a Roman bowl bearing the names of forts on Hadrian's wall has been acquired by the British Museum and others. Perhaps most importantly, "the scheme has also taken the initiative in policing the internet for objects that should be reported under the Treasure Act and has promoted a code of practice".

The situation isn't any better in Scotland either, where funding for the 2014 Commonwealth Games in Glasgow will likely begin to increase as well. I don't doubt that holding the Olympics in London will give a number of benefits to London and the UK. Perhaps if most British citizens were given a choice maybe they would choose Olympic funding over the arts and culture. However, I think those in charge should be upfront about the hidden costs and very real cuts which this Olympic bid will cause.

Dec 20, 2007

Thieves have stolen works by Pablo Picasso and Candido Portinari from the Sao Paulo Museum of Art. The theft was made known early Thursday morning. The stolen Picasso is pictured here, Portrait of Suzanne Bloch, 1904. Early estimates place the monetary value of the stolen works at $100 million USD. However these are major works, the Picasso is from the artist's blue period. Portinari is a major Brazilian artist. The AP story is here.

Dec 18, 2007

The Nostoi ("Returns") epic is mostly lost, but the bits and pieces which have survived indicate it tells the story of the return home of the Greek heroes after the Trojan War.

It is perhaps apt then that Italian authorities on Monday called the display "Nostoi: Returned Masterpieces" when they unveiled 68 antiquities which have recently been returned to Italy. Soon to join the list is the Euphronios Krater, which is slated for return from the Met in January.

Livia Borghese and Jason Felch have the story in the LA Times. Elisabetta Povoledo has a similar story in the NY Times, including a slide show by the AP and Italian Culture ministry. This image may be my favorite of the bunch, the Griffins attacking the doe. Objects were returned from the Getty, the Museum of Fine Arts in Boston, Princeton, and the Met. Also, some objects from the Royal Athena Galleries in New York were returned as well.

As might be expected, Francesco Rutelli the Italian culture minister and vice prime minister was quick to point out the significance of these returns saying, "The odyssey of these objects, which started with their brutal removal from the bowels of the earth, didn't end on the shelf of some American museum... With nostalgia, they have returned. These beautiful pieces have reconquered their souls."

Ultimately, the display shows the results of the Italian campaign which by necessity eschewed international law, and American law and instead went right to the heart of the matter using public pressure and the media along with the high-profile and ongoing trials of Marion True and Robert Hecht. At the press conference, Rutelli claimed that this strategy has "[brought] about radical changes in the trade of looted antiquities". That may be true in a limited sense I suppose, but only I think when the antiquities are backed by strong political will in source nations. What about the trade in antiquities from South America or Iran and elsewhere? I'm not sure this strategy will impact those objects. I'm not sure either that this new strategy will alter the idea of the Universal Museum, which seems largely at odds with the policy of many source nations. Ideally the Italian accords will continue to allow the US and Italy to work together to continue to share objects but also to prevent the acquisition of illicit antiquities in the future.

UPDATE:

Sarah Delaney has more in yesterday's Washington Post, with more pontificating by Rutelli including this: "if we dry up the waters of illegal art trafficking it will be much more difficult for tombaroli and others to operate." He praised as well the "new standards of ethics that American museums have adopted". First among these is the Getty's stringent new acquisition policy. Also, museums who cooperate will earn continued loans.

David Gill has more on the official handlist of objects in the display, including where objects came from, and a breakdown of the type and composition of objects. As he points out, "15 pieces were represented by South Italian pottery."

Dec 17, 2007

Is a resolution eminent in the largest art theft in history? Perhaps, with word this morning that a Boston grand jury is scheduled to hear evidence this week into the 1990 theft from the Isabella Stewart Gardner Museum, estimated at between $300-500 million. One of the stolen works is the Concert by Vermeer.

The former worker said two FBI agents questioned him about his recollection of the theft several days ago and handed him a subpoena to testify before the grand jury in Boston tomorrow.

The agents told him they were gathering facts on the case and were hoping that the grand jury would "shake things up" in the long-stalled investigation, said the former worker, who asked not to be identified.

The agents did say that they were pursuing the possibility that the theft may have been carried out by three individuals - and not two as has long been publicly believed, the former employee said.

On Friday, a spokeswoman for US Attorney Michael J. Sullivan's office declined to comment on the grand jury, stating that the office never confirms or denies the existence of such a session.

A spokeswoman for the Gardner Museum also declined comment.

The former museum employee read portions of the subpoena to the Globe and said it was signed by Brian T. Kelly, a veteran prosecutor in the US attorney's office. Kelly has helped spearhead the federal investigation into and the crackdown of James "Whitey" Bulger's criminal enterprise.

It is often said that a grand jury is both a sword and a shield. It protects the rights of criminal defendants, but also allows prosecutors to use their subpoena power to compel testimony. Whether a resolution will emerge remains to be seen, but right now there are more questions than answers, most notably: where are the paintings?

Dec 16, 2007

On Thursday Donn Zaretsky at the always-enjoyable art law blog continued his discussion of the fake Gaugin Faun statue. Specifically, he wondered what kind of international registry might have prevented this kind of fraud, and asked me how I would envision a registry. I have a few thoughts on the subject, but they're still in an early stage.

I had originally intended to put discussions of a potential registry and some concrete reforms of the market which are needed in the thesis. It's not in there though because I simply ran out of space, and I'll have to save those ideas for some future work I suppose. I don't have a definitive answer for how an international registry might be constructed. Ideally an international body such as UNESCO would step forwards and create one, however that is far too ambitious an undertaking for that organization given its current state of funding. The industry itself could choose to regulate itself more closely, but it gains more profit by not revealing information information. In the end, the art market needs a registry like MLB, the NFL and other sports leagues need a test for Human Growth Hormone. But neither is likely to arise soon.

It's a difficult potential issue because there a number of serious obstacles to creating a registry. The Art Loss Register and other databases exist, but they aren't the answer to the whole problem. The current market structure earns more money without a registry. Here's how: if I have a painting and want to sell it I can take it to an auction house. Now I'm a lowly PhD student, and that's certainly not a lucrative career choice. If someone were to purchase the painting from me directly they would have a great deal of bargaining power if they knew my relative financial position. The painting might be worth $20,000; however the purchaser may realize my financial position and negotiate the deal lower. Auctions take place anonymously and avoid this. In many if not most transactions, we are unaware who the buyer and seller are. For the fake Faun, the consignor was Mrs. Greenhalgh using her maiden name. Had the buyer known she was living in council housing, might they have been less inclined to purchase the object, or even have more cause to doubt its authenticity? I think so certainly.

A good recent article in the Florida Law Review proposes a torrens registration scheme for works of art. Bruce W. Burton, IN SEARCH OF JOHN CONSTABLE'S THE WHITE HORSE: A CASE STUDY IN TORTURED PROVENANCE AND PROPOSAL FOR A TORRENS-LIKE SYSTEM OF TITLE REGISTRATION FOR ARTWORK, 59 Fla. L. Rev. 531 (2007). The introduction lays out the main argument:

At least forty percent of valuable artwork circulating in the marketplace is either forged or misattributed. Apart from this significant problem of art authenticity, the chains of title showing current ownership of many genuine and properly attributed objects are defective. These defects are due to incompleteness of the historical records, innocent error, lapse of time, fraudulent manipulation, or theft. This Article explores the dual complexities of properly establishing a valuable art object's correct provenance-that is to say, determining both the authenticity as well as the chain of legal ownership of the work. This Article also examines the six principal legal doctrines that human society has designed to resolve competing ownership claims and the significant moral shortcomings of each doctrine. Most significantly, this Article presents a proposal for a much-needed reform in the law of art provenance.

The proposed reform is modeled on the Torrens land-title registration system in effect in Australia, parts of the United Kingdom, and a handful of states in the United States. The reform would offer the following: (1) a legal system for conclusively registering both the ownership and authenticity of any valuable piece of artwork; (2) fundamental fairness to all parties claiming an interest in the artwork; (3) assured financial compensation to any innocent party whose claim to the artwork has been injured or lost by operation of the Torrens-like system; (4) permanent and visible public records of art ownership; and (5) enhanced market stability because of the certitude and transparency afforded to art consumers by such a title registration system.

Burton makes a good case, but it would rely on individual states to implement the system, creating a patchwork of coverage. That would be better than nothing I suppose. In the end buyers of art, and even authenticators get excited by the prospect of rediscovering "lost" art or works which have gone missing. It can happen in legitimate ways as evidenced by the trash-rescue earlier this year. However, such a system leaves open the possibility of forgers, and also creates havoc in the antiquities trade for source nations and sites. The best advantage of a registration system would not necessarily be that it prevents these kinds of fraudulent transactions today, but that it builds up a body of knowledge about an object's provenance so as to prevent such mistakes in the future. As it stands now, we still aren't certain how many more forgeries by Greenhalgh may have been sold.

Barbie Nadeau has an interesting article online at Newsweek. It makes the same kind of point that a number of commentors, me included, have noticed. Namely, that Italian politicians are often adroit at using Italian heritage for political gain.

Last month Veltroni and Rutelli unveiled another gem on the Palatine Hill: the "Lupercale," the ancient grotto where, legend has it, a she-wolf nursed Rome's founder, Romulus, and his twin brother, Remus. The showing of the Lupercale delighted Italians with the suggestion that the legend might be true. But while the romantics were studying the mythology, the cynics were asking questions about just why the finds were being shown off at that time. The grotto, after all, was discovered last January, during the restoration of Augustus's palace and the iconic collapsed wall. Back then Irene Iacopi, the archeologist in charge of the Palatine Hill, said she discovered the cavern, which is covered with frescoes, niches and seashells, after inserting a 52-foot probe into the ground. So why did it take almost a year for the authorities to make a public announcement about the find?

The answer, it would seem, lies in politics and power. Just days before the showcasing of the Lupercale, Silvio Berlusconi had disclosed his plans to form a new political party that would compete with Rutelli and Veltroni. The news about the grotto, however, effectively eclipsed Berlusconi's news, leading the former prime minister to describe the timing as "suspect."

It's an interesting point I think. But when culture is such an important political issue in Italy, it seems only natural for politicians to manage the news in much the same way the President might shape the news with respect to the economy, the War in Iraq, or other matters.

I do have issues with one claim made in the article though. It is claimed that "Getty Museum curator Marion True went on trial in Rome for conspiracy and receiving stolen artworks for the Los Angeles institution. The trial, which began during Berlusconi's term and is still ongoing, has directly led to the return of more than 100 artifacts from other American museums that purchased items of questionable provenance, including 40 from the Getty." I think that may be overstating the importance of the True trial. Certainly it has had an impact, but more important is the concrete Polaroids and other evidence detailed in the Medici Conspiracy. That evidence came as a result of investigation of a theft of objects from Italy which were later traced to Switzerland. That investigation, of which the True prosecution has emerged, is the root cause I think.

Dec 13, 2007

Apologies for the light posting this last week. I've been away in Dubai with the wife. I'll talk about why, and talk a bit about my impressions tomorrow. For now I want to talk about the big story which was revealed while I was away: the forgery by Shaun Greenhalgh, whom I talked about earlier here.

The Art Newspaper has perhaps the best coverage, as it seems it tracked the sculpture to Chicago. Last month the three members of the Greenhalgh family were sentenced over the Amarna Princess. They discovered a Gauguin sculpture had been created by Greenhalgh after talking with Scotland Yard. They then tracked the work to Chicago.

The forged work was consigned to Sotheby's by "Mrs. Roscoe", the maiden name of Olive Greenhalgh. It was sold for £20,700. The London dealers Howie and Pillar purchased it, and it was later sold to the Art Institute for $125,000. The purchase was hailed as a success. Martin Bailey asks why nobody questioned the authenticity? The real sculpture has been missing, the forgery was based on a faun sketch dating to 1887. It seems Sotheby's is expected to reimburse the Art Institute of Chicago. I think this reveals at least two troubling matters.

First, how many more forgeries are out there? How easy is it to trick authenticators? The best in the world looked at this sculpture and were duped. Perhaps they wanted to believe a little too much. Also, when visitors (and even experts) looked at the sculpture did it convey emotion? How much did that have to do with the beauty of the object itself; and how much was related to the idea that this small work was created by a "great" artist, Paul Gauguin?

Second, I think it reveals the continuing need for more provenance information in art and antiquities sales. The answer may be for an international registry which tracks buyers and sellers when objects are bought and sold. Until such a system emerges, the market continues to leave itself open to this kind of embarrassment.

It was an enjoyable afternoon, and a lot of fun for me to hear what people like Prof. Norman Palmer, Kevin Chamberlain, and Marc-André Renold had to say on the topic, as I've read and relied on their work a great deal in the last few years.

The highlight for me was hearing from Jeremy Scott, of Withers LLP who represented Iran in the recent high court case with Barakat galleries. It may be useful for people to know a bit about what the speakers had to say on this rule. For the non-law readers, apologies if this post is a bit lawyerly, but some of these private legal concepts are a bit involved.

The lex situs rule essentially dictates that when a stolen piece of cultural property crosses national boundaries, and laws conflict, the law of the jurisdiction where the sale took place (i.e. lex situs) will apply. This is a nearly unanimous rule which applies to movable objects. Two speakers gave particularly good insights.

Dr. Janeen Carruthers, a reader at the University of Glasgow gave a very informative overview of the whole scope of the lex situs rule. It was great to hear her thoughts, as an expert on Private International Law. She had some interesting things to say, especially arguing clandestine removal may have many things in common with the clandestine removal of antiquities, and this similarity may be a useful tool for arguing the lex situs rule should not perhaps hold the prominent position it does today.

I also particularly enjoyed hearing Professor Johan Erauw of the University of Ghent in Belgium talk about Talk about a new Belgian amendment to the Code of Private International Law in 2004 which provided for a lex originis choice-of-law rule in certain limited circumstances. It was an interesting amendment of the general rule, but he argued persuasively that the rule was substantially weakened, and the reasons may be tied to certain Belgian museums, who were concerned about losing some or all of their collection with a new more generous rule for source nations.

Given such a distinguished panel, I set the bar pretty low for myself. My main argument, and perhaps its one that's more common sense than anything, is that the lex situs rule is ill-equipped to regulating and limiting the illicit trade in art an antiquities. I do think a convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations, and in fact this is the approach taken by Belgium.

When public international law offers no remedy, claimants are often forced to seek redress through private law.Of course all nations forbid theft; and every jurisdiction recognizes that a thief cannot possess superior title to the original owner.The classic dispute in cultural property litigation does not involve the original owner and the thief, but rather the original owner and a subsequent purchaser.Both of these parties are relative innocents.The difficulty in private international law disputes hinges on the ways in which different states have chosen to allocate burdens, rights and responsibilities between these two relative innocents.

States could take the Belgian approach and use another choice of law principle.There could be a call to reform good faith purchaser rules in Civilian jurisdictions.We might decide that art and antiquities should be registered when they are bought and sold.These all strike me as plausible and sensible reforms, however we must start from the position that the current default legal framework does not effectively distinguish illicit objects.The problem, and its one that’s been noted by many cultural heritage scholars, is that nations and lawmakers too often respond to the illicit trade rather than create a workable legal regime to prevent problems before they occur.The Belgian example strikes me as an important and noteworthy exception to this rule.

Should there be an antiquities market in some form?If the answer is yes, as it currently stands there is not a workable system to ensure antiquities are licit.To erect such a system will require substantial compromise on the part of source nations and the antiquities market.The market will have to radically shift the way it conducts itself to provide adequate safeguards that antiquities are legally excavated or from older collections.In turn, it seems likely that source nations will have to find a way to provide licit antiquities to meet market demand.Until such a compromise is brokered, courts in market nations will continue to be faced with difficult issues.

It was a really enjoyable seminar, and I'd like to thank the organizers and the Institute of Art and Law for being kind enough to allow a PhD candidate to present alongside such an impressive panel.

Dec 3, 2007

The AP is reporting today that 2,308 ancient coins have been seized and a 70-year-old barber arrested in northern Greece. The coins mainly date from the Roman and Hellenistic peroid.

Several coins bore the heads of Alexander the Great, the Macedonian warrior king, and his father King Philip.

The man was arrested Sunday near the town of Veroia, 490 kilometers (305 miles) north of Athens. He has been charged with antiquity smuggling and taken into police custody.

Police said they searched the man's home and unexpectedly discovered the coins after he had been identified by two juvenile robbery suspects as the person who bought their stolen mobile phones and other items.

Apologies for the light posting in recent days. I've been quite busy in the last week. I was fortunate enough to submit my thesis last week, so hopefully the oral examination (with a good result) will take place soon. Also, I had the opportunity to present a bit of my own work at a very interesting seminar on the lex situs rule organized by the Institute of Art and Law, and Withers LLP, which has its own Arts and Cultural Assets Group. I'll post more on the event later this afternoon. For now I'll just give a rundown of some very interesting events which have taken place in recent days.

Donald Trump's proposed golf-o-rama just north of Aberdeen has been rejected by the Aberdeenshire Council. To be clear, Trump's development had little to do with golf, and more to do with holiday homes, a luxury hotel, and mega-houses.

Some of the staff at the Portable Antiquities Scheme have started to map finds with google maps.

The Hellenic Society for Law and Archaeology reports on the new Greek Cultural Goods legislation, which will appoint a special cultural heritage prosecutor and purports to extend the expansion of Greek penal law even when crimes have taken place abroad.